Leslie v. Attorney General of US

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-3180

_____________

NEVILLE SYLVESTER LESLIE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_____________

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A41-329-237

Immigration Judge: Walter A. Durling

_____________

Argued March 10, 2010

Before: AMBRO, SMITH and ALDISERT, Circuit Judges

(Filed: July 8, 2010)

CAROLINE BROWN

SARA. B. CAMES (ARGUED)

COVINGTON AND BURLING

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 2004

ATTORNEYS FOR PETITIONER

MICHAEL F. HERTZ

Acting Assistant Attorney General, Civil Division

WILLIAM C. PEACHEY

Assistant Director, Office of Immigration Litigation

JEM C. SPONZO (ARGUED)

U.S. Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington D.C., 20044

ATTORNEYS FOR RESPONDENT

_____________

OPINION OF THE COURT

_____________

ALDISERT, Circuit Judge.

2

Neville Sylvester Leslie petitions for review of a final

order of removal of the Board of Immigration Appeals

(“Board”), arguing that the Immigration Judge’s (“IJ”) failure to

advise him of the availability of free legal services, as required

under 8 C.F.R. § 1240.10(a)(2)-(3), entitles him to a new

removal hearing under United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260 (1954). Leslie additionally argues

that his statutory and due process rights were violated by a

deficient Notice to Appear for the removal hearing. For the

reasons that follow, we will grant the petition for review, vacate

the Board’s decision, and remand for a new hearing.

I.

On October 2, 1998, Leslie, a native and citizen of

Jamaica and a lawful permanent resident of the United States,

pled guilty to the felony offense of conspiracy to possess and

distribute 50 grams or more of “crack” cocaine, in violation of

21 U.S.C. §§ 841(a)(1) and 846, and was sentenced to 168

months’ incarceration. While serving his sentence, Leslie was

issued a Notice to Appear by the Department of Homeland

Security (“Department”), charging him with being subject to

removal under subsections 237(a)(2)(A)(iii) (aggravated felony

conviction) and 237(a)(2)(B)(i) (controlled substance

conviction) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1227(a)(2)(A)(iii) & 1227(a)(2)(B)(i). The notice was

sent on February 21, 2008, but did not include the time or date

of the hearing. (App. 131.) The notice referred to a “list of

3

qualified attorneys and organizations who may be available to

represent you at no cost,” which was to be provided with the

notice. Although a checkmark appeared beside the box that read

“Attached is a list of organizations and attorneys which provide

free legal services,” the list does not appear in the administrative

record. (App. 132.)

The record contains a second notice, dated April 8, 2008.

It states the date, time, and place of Leslie’s removal hearing,

but was delivered to “York ICE – Clinton” in York,

Pennsylvania. (App. 129.) The “Legal Services List” box is not

checked. (App. 129.) On April 8, 2008, Leslie was serving his

criminal sentence at Clinton County Prison in McElhattan,

Pennsylania. According to Leslie, he was transported by U.S.

Immigration and Customs Enforcement officers from Clinton

County Prison to York County Prison on April 15 or 16, 2008.

(App. 118; Pet’r Br. 7.) Leslie appeared before an IJ at York

County Prison on April 16, 2008.1 When the IJ inquired if Leslie

was seeking an attorney, he replied, “I don’t have the money,

Sir.” (App. 115.) The IJ did not explain the availability of free

legal resources, nor did he ascertain whether Leslie had received

1

It is not clear from the record precisely when Leslie

became apprised of the April 16 hearing. According to the

Government, “[b]y virtue of his detention status, [Leslie] was

conveyed to his hearing before the immigration judge on April

16, 2008, and informed of the nature of those proceedings.”

(Resp’t Br. 13.)

4

the “Legal Services List.” The IJ ordered Leslie removed as an

alien convicted of an aggravated felony. (App. 111-113.)

Leslie timely appealed to the Board, which issued a

decision on July 11, 2008, dismissing his appeal. (App. 13-14.)

Leslie filed a petition for review in our Court on July 21, 2008,

and filed a motion to stay his removal on July 24, 2008. On

August 14, 2008, this Court granted his request for a stay of

removal and appointed him counsel.

II.

The Government’s sole argument is that we lack

jurisdiction to review Leslie’s petition under INA section

242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).2 We disagree. Although

2

Not only is this manifestly incorrect, but the

Government’s failure to assist the Court in evaluating the

specifics of Petitioner’s argument required the Court to conduct

a special, searching analysis of Petitioner’s contentions before,

during and after oral argument. As to that portion of Rule

31(a)(1), Federal Rules of Appellate Procedure, directing an

appellee or respondent to “serve and file a brief within 30 days

after appellant’s [or petitioner’s] brief is served,” we construe

the word “brief” to require that the answering brief address

every relevant, non-frivolous issue presented by the appellant or

petitioner. Litigants should also be mindful of the proper

construction of this term when considering Rule 31(c)’s

directive that an appellee or respondent “who fails to file a brief

5

8 U.S.C. § 1252(a)(2)(C) limits our jurisdiction over final

decisions ordering removal based on the commission of an

aggravated felony or a controlled substance offense, we retain

jurisdiction over constitutional claims and questions of law. See

8 U.S.C. § 1252(a)(2)(D); see also Papageorgiou v. Gonzales,

413 F.3d 356, 358 (3d Cir. 2005). Leslie mounts a two-pronged

attack on his removal hearing. He argues first that his Notice to

Appear was deficient under 8 U.S.C. § 1229(a)(1)(G)(i), thereby

denying him a meaningful opportunity to be heard. He argues

next that the IJ’s failure to inform him of the availability of free

legal services, in violation of 8 C.F.R. § 1240.10(a)(2)-(3),

deprived him both of his constitutional right to due process and

his statutory right to counsel under 8 U.S.C. § 1362. Leslie’s

appeal presents both a question of law – whether an IJ’s failure

to comply with 8 C.F.R. § 1240.10(a)(2)-(3) is grounds for a

new removal hearing under the Accardi doctrine, and a

colorable constitutional claim – whether his removal order is

will not be heard at oral argument unless the court grants

permission.”

“It is well settled that an appellant’s failure to identify or

argue an issue in his opening brief constitutes waiver of that

issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d

Cir. 2005). We make clear that the answering party’s dereliction,

as here, could not constitute a waiver because, in the final

analysis, it is for the Court to evaluate the issues presented by

the appellant or petitioner.

6

invalid for insufficient notice under the Due Process Clause and

8 U.S.C. § 1229(a)(1)(G)(i). We have jurisdiction over both

claims pursuant to 8 U.S.C. § 1252(a)(2)(D), and we review

both issues de novo, Patel v. Ashcroft, 294 F.3d 465, 467 (3d

Cir. 2002) (superseded by statute on other grounds).

III.

A.

We first address Leslie’s contention that his removal

order is invalid because the IJ failed to comply with regulations

promulgated by the Attorney General to protect his right to

counsel. In particular, Leslie contends that the IJ violated 8

C.F.R. § 1240.10(a)(2)-(3), which directs that “[i]n a removal

proceeding, the immigration judge shall” “[a]dvise the

respondent of the availability of free legal services provided by

organizations and attorneys . . . located in the district where the

removal hearing is being held” and shall “[a]scertain that the

respondent has received a list of such programs[.]” Although

allegations of due process violations must ordinarily be

accompanied by “an initial showing of substantial prejudice,”

Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (citation

and quotation marks omitted), Leslie contends that these

procedural rights are protected by the Fifth Amendment and

that, under Accardi, 347 U.S. 260, he need not show prejudice

to invalidate his removal order. It is undisputed that the IJ

violated 8 C.F.R. § 1240.10(a)(2)-(3) when he failed to advise

7

Leslie of the availability of free legal services and neglected to

confirm Leslie’s receipt of the list of these programs.3 We must

3

The Government makes no argument that the IJ

complied with the regulation in question. Nonetheless, we have

reviewed the record and we conclude that the sum total of the

IJ’s colloquy with Leslie regarding his right to counsel is as

follows:

Q. “Mr. Leslie, you have a right to be

represented by an attorney at no expense to

the United States Government. If you want

a lawyer, you must find the attorney

yourself. The Court may not by law

appoint an attorney for you. Do you

understand?”

A. “Yes.”

Q. “Are you seeking an attorney?”

A. “I don’t have the money, Sir.”

Q. “All right. Do you want to proceed and

answer questions of the Court today?”

A. “Yeah, because I, I – I’d become a

National in this country.”

(App. 115.)

8

now decide whether the violation of this regulation entitles

Leslie to a new removal hearing without a showing of prejudice.

B.

We begin with the long-settled principle that rules

promulgated by a federal agency that regulate the rights and

interests of others are controlling upon the agency. Columbia

Broad. Sys., Inc. v. United States, 316 U.S. 407, 422 (1942).

This doctrine was first applied in an immigration case in

Accardi, where the Supreme Court vacated a removal order of

the Board because the procedures leading to the order did not

conform to the applicable regulations. Accardi, 347 U.S. at 268.

The Board, appointed by the Attorney General, operated under

regulations promulgated by the Attorney General that provided,

in part, that the Board “shall exercise such discretion and power

conferred upon the Attorney General by law.” Id. at 266

(quoting applicable regulations). The petitioner alleged that the

Attorney General had circulated a list of “unsavory characters,”

including Accardi, who the Board then summarily removed

without exercise of its discretion. The Supreme Court held that

as long as the regulation granting the Board broad discretion

remained operative, the Attorney General could not sidestep the

Board or dictate its decision in any manner. Id. at 266-267.

Without requiring the petitioner to show prejudice, the Accardi

Court reversed, holding that Accardi was entitled to a new

hearing before the Board if he could prove his allegations in the

district court. See id. at 268.

9

After Accardi, the Court continued to require agencies to

comply with their promulgated regulations, without requiring

petitioners to make a showing of prejudice. In Service v. Dulles,

354 U.S. 363 (1957), the Court invalidated a Foreign Service

Officer’s national security discharge because the Department of

State failed to comply with regulations granting procedural

safeguards. Acknowledging that the Secretary of State was not

required to adopt the regulations in question, the Court

nonetheless held that, “having done so he could not, so long as

the Regulations remained unchanged, proceed without regard to

them.” Id. at 388. There was no discussion of prejudice to the

terminated employee. Id. at 389. Two years later, in Vitarelli v.

Seaton, 359 U.S. 535, 539-540 (1959), the Court demanded that

the Department of the Interior adhere to its employee-discharge

procedures when terminating an employee on loyalty grounds,

even though the Secretary could have dismissed the employee

summarily on non-loyalty grounds. The Court ordered the

petitioner reinstated without a showing of prejudice. Id. at 546.

Then, in Yellin v. United States, 374 U.S. 109 (1963), the Court

held that the failure of a House Committee to comply with its

own rule – requiring the Committee to consider harm to the

witness’s reputation when deciding whether to hold an executive

session – excused the witness’s refusal to answer questions. Id.

at 123-124. With no discussion of prejudice, nor showing of

prejudice apparent on the record, the Court held that the

Committee’s failure to comply with its own rule would

constitute an affirmative defense to the charge of criminal

contempt. Id.

10

In American Farm Lines v. Black Ball Freight Service,

397 U.S. 532 (1970), however, the Court clarified that not every

promulgated regulation is of such a nature that a violation

should invalidate agency action. There, the Court sharply limited

application of the Accardi doctrine when it imposed an explicit

prejudice requirement to sustain an Interstate Commerce

Commission (“ICC”) award of temporary operating authority,

notwithstanding the ICC’s failure to comply with regulations

requiring applicants to document efforts to obtain service from

other carriers. Id. at 538. Distinguishing Accardi and Vitarelli,

the Court characterized the regulation at issue as a mere

“procedural rule[] adopted for the orderly transaction of

business” in order to “aid the Commission in exercising its

discretion,” rather than a rule “intended primarily to confer

important procedural benefits upon indiv[i]duals in the face of

unfettered discretion.” Id. at 538-539 (quotation and citation

omitted). Applying the “general principle” that an agency may

always relax its own “procedural rules,” the Court held that the

action was “not reviewable except upon a showing of substantial

prejudice to the complaining party.” Id. at 538, 539.

Courts have taken diverse approaches to reconciling the

tension between American Farm Lines and Accardi, some

imposing explicit prejudice requirements, see, e.g., United

States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979)

(“Violation of a regulation renders a deportation unlawful only

if the violation prejudiced interests of the alien which were

protected by the regulation.”), and others explicitly rejecting a

11

prejudice requirement, see, e.g., Montilla v. INS, 926 F.2d 162,

169 (2d Cir. 1991) (“For these reasons, we hold that an alien

claiming the INS has failed to adhere to its own regulations

regarding the right to counsel in a deportation hearing is not

required to make a showing of prejudice before he is entitled to

relief.”). The requirement vel non of prejudice is at times simply

announced through judicial fiat and at times explicitly reasoned,

based often on the nature of the right implicated by the

regulation. See, e.g., Wilson v. Comm’r of Soc. Sec., 378 F.3d

541, 547 (6th Cir. 2004) (recognizing distinction between

regulations that confer important procedural benefits and those

adopted merely for internal operating procedures); Lopez v. Fed.

Aviation Admin., 318 F.3d 242, 247 (D.C. Cir. 2003) (“[T]his

court has been careful to distinguish between procedural rules

benefitting the agency (American Farm Lines) and procedural

rules benefitting the party otherwise left unprotected by agency

rules (Vitarelli), as well as cases in which the agency has failed

to exercise discretion required by its regulations (Accardi).”);

Martinez-Camargo v. INS, 282 F.3d 487, 491 (7th Cir. 2002)

(adopting prejudice standard because it “strikes the proper

balance between recognizing the need for administrative

agencies to follow their own rules with the practical reality that

not every agency violation impacts an alien’s substantive

rights”).

This Court has never explicitly formulated a framework

for determining when judicial relief for a regulatory violation

must be premised upon a showing of prejudice. See Ponce-Leiva

12

v. Ashcroft, 331 F.3d 369, 385 (3d Cir. 2003) (Rendell, J.,

dissenting). We last addressed this question in Chong v. INS,

264 F.3d 378, 389 (3d Cir. 2001), where we required the

petitioner to show prejudice to obtain a new removal hearing

based on the IJ’s violation of 8 C.F.R. § 3.7, which requires an

IJ’s Notice of Certification to the Board to inform parties that

they have the right to make representations before the Board.

We characterized 8 C.F.R. § 3.7 as procedural and agreed with

the Court of Appeals for the Second Circuit that the regulation

was “‘not grounded in any underlying fundamental

constitutional or statutory right.’” Id. at 390 (quoting Waldron

v. INS, 17 F.3d 511, 518 (2d Cir. 1993)). The Waldron court

carved out a new rule for rights that are “merely provisions

created by agency regulations,” Waldron, 17 F.3d at 518, by

establishing an explicit framework for determining when

regulatory violations are reversible error:

[W]hen a regulation is promulgated to protect a

fundamental right derived from the Constitution

or a federal statute, and the INS fails to adhere to

it, the challenged deportation proceeding is

invalid and a remand to the agency is required.

This may well be so even when the regulation

requires more than would the specific provision of

the Constitution or statute that is the source of the

right. On the other hand, where an INS regulation

does not affect fundamental rights derived from

the Constitution or a federal statute, we believe it

13

is best to invalidate a challenged proceeding only

upon a showing of prejudice to the rights sought

to be protected by the subject regulation.

Id. (citation omitted).

Chong stands for the proposition that a violation of a

regulation that does not protect fundamental constitutional or

statutory rights is reversible error only with a showing of

prejudice.4 See Chong, 264 F.3d at 389-390. Although we

4

We must take this opportunity to rectify a mistake in

Chong, where we directly quote an erroneous statement from a

Fourth Circuit case – Morgan. See Chong, 264 F.3d at 389-90

(quoting United States v. Morgan, 193 F.3d 252, 266 (4th Cir.

1999)). We stated in Chong:

Although the Accardi doctrine originally contemplated

that an agency’s failure to comply with its own rules

automatically would nullify its actions, the Supreme

Court since has “required that claimants demonstrate

prejudice resulting from the violation unless ‘[t]he rules

were not intended primarily to confer important

procedural benefits upon individuals in the face of

otherwise unfettered discretion’ or unless ‘an agency

required by rule to exercise independent discretion has

failed to do so.’” Morgan, 193 F.3d at 267 (quoting Am.

Farm Lines v. Black Ball Freight Serv., 397 U.S. 532,

538-39 (1970)).

14

might infer that Chong adopted the complete framework set

forth by the Second Circuit in Waldron v. INS, we believe that

Chong cannot serve as a clear-cut precedent for cases in this

Court where the violation of the regulation impinges on

fundamental rights derived from the Constitution or a federal

statute, because it conceivably might be considered obiter

dictum. Nonetheless, Chong is an important stepping stone in

Id. (emphases added). The Morgan case’s first use of “unless”

renders its characterization of the American Farm Lines

language erroneous. Under American Farm Lines, 397 U.S. at

538-539, rules intended to provide “procedural benefits upon

indiv[i]duals in the face of otherwise unfettered discretion” can

be “exempt . . . from the general principle” that a prejudice

showing is required. The case American Farm Lines cites for

this proposition, Vitarelli, 359 U.S. 535, confirms this

interpretation. As previously discussed, in Vitarelli, procedural

rules for federal agency discharge proceedings were violated.

Ordinarily, the agency had unfettered discretion to discharge

employees; however, the agency had instituted “procedural

safeguards” where the agency’s reason for discharge was a

concern for national security. Id. at 540. Given the

circumstances, the Court stated that “scrupulous observance of

departmental procedural safeguards is clearly of particular

importance.” Id. The Court did not mention any prejudice

requirement, but instead held that the employee’s dismissal for

national security reasons was illegal given the agency’s

procedural violations. Id. at 545.

15

the development of the law, and it encourages us in this case to

formulate a framework to serve as guidance on the necessity of

proof of prejudice vel non in both circumstances, to wit, where

an agency regulation (1) is not grounded in any underlying

fundamental constitutional or statutory right and (2) affects

fundamental rights derived from the Constitution or a federal

statute. The teachings of Chong have furnished the answer to the

first set of circumstances. The resolution of this case requires us

to furnish the answer to the second. We are persuaded by

Waldron, and hold that violations of regulations promulgated to

protect fundamental statutory or constitutional rights need not be

accompanied by a showing of prejudice to warrant judicial

relief.

We believe that this rule comports with Accardi and

American Farm Lines. Accardi teaches that some regulatory

violations are so serious as to be reversible error without a

showing of prejudice, and American Farm Lines, 397 U.S at

539, exempts from this principle those procedural regulations

“adopted for the orderly transaction of business.” With these

precepts in mind, we believe a prejudice rule that distinguishes

between regulations grounded in fundamental constitutional or

statutory rights and agency-created benefits successfully carves

out the procedural regulations exempted by American Farm

Lines while honoring Accardi’s insistence that some regulatory

violations are so serious as to merit judicial relief. We agree also

that, absent prejudice, when a violation of immigration

regulations implicates less than fundamental rights, wholesale

16

remand places an “unwarranted and potentially unworkable

burden on the agency’s adjudication of immigration cases.”

Waldron, 17 F.3d at 518.

We take additional guidance from Supreme Court

teachings emphasizing the importance of the root of the

regulation in question when determining appropriate judicial

relief for regulatory violations. In Morton v. Ruiz, 415 U.S. 199,

235 (1974), the Court required the Board of Indian Affairs to

comply with its own internal procedures requiring publication

of all directives regarding assistance-eligibility requirements. In

so doing, the Court noted that “[w]here the rights of individuals

are affected, it is incumbent upon agencies to follow their own

procedures. This is so even where the internal procedures are

possibly more rigorous than otherwise would be required.” Id.

(citing Dulles, 354 U.S. at 388, and Vitarelli, 359 U.S. at 539-

540). The Court later observed in United States v. Caceres, 440

U.S. 741, 749 (1979), that “[a] court’s duty to enforce an agency

regulation is most evident when compliance with the regulation

is mandated by the Constitution or federal law.” Our rule,

dispensing with the prejudice requirement for violations of

regulations that protect fundamental constitutional or statutory

rights, comports with both Morton’s focus on individual rights

and Caceres’s acknowledgment that regulations mandated by the

Constitution or federal law command strict compliance.

Additionally, we note that our sister Courts of Appeals

have generally required stricter compliance with regulations

17

born of statutory or constitutional rights. See Battle v. FAA, 393

F.3d 1330, 1336 (D.C. Cir. 2005) (“‘[A] court’s duty to enforce

an agency regulation[, while] most evident when compliance

with the regulation is mandated by the Constitution or federal

law,’ embraces as well agency regulations that are not so

required.” (quoting Caceres, 440 U.S. at 749) (quotation and

citation omitted); Waldron v. INS, 17 F.3d 511, 518 (2d Cir.

1993); Arzanipour v. INS, 866 F.2d 743, 746 (5th Cir. 1989)

(“The failure of an agency to follow its own regulations is not,

however, a per se denial of due process unless the regulation is

required by the constitution or a statute.”). This rule balances the

inherent tension between the well-established deference due

administrative agencies, see, e.g., Chevron v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984), and judicial oversight of

agency implementation of regulations. “[A]n administrative

agency is not a slave of its rules,” Sun Oil Co. v. Fed. Power

Comm’n, 256 F.2d 233, 239 (5th Cir. 1958), but “[t]he notion of

fair play animating [the Fifth Amendment] precludes an agency

from promulgating a regulation affecting individual liberty or

interest, which the rule-maker may then with impunity ignore or

disregard as it sees fit.” Montilla, 926 F.2d at 164. We believe

that a rule distinguishing regulatory rights that are statutorily or

constitutionally grounded from those that are born purely of

regulations comports with these precepts.

Although we agree that prejudice need not be shown

when alleged regulatory violations implicate fundamental

statutory or constitutional rights, we reject Leslie’s assertion that

18

the proper standard is set forth in Montilla, 926 F.2d at 169,

where the Court of Appeals for the Second Circuit held that an

alien alleging a regulatory violation by the INS need show only

that the subject regulation was for the alien’s benefit and that the

INS failed to comply with it. Leslie fails to note that, just four

years after Montilla, the court in Waldron, 17 F.3d 511, effected

an affirmative retreat from the strong language in Montilla,

limiting that case “to its express terms.” Id. at 517. Waldron

declared that Montilla “may not be interpreted as suggesting an

absolute ‘no prejudice’ standard whenever a challenged

regulation is for the benefit of an alien. Any such interpretation

is unwarranted given the limited holding in Montilla.” Id.

(emphasis in original) (quotation marks omitted). Although a

subsequent case, Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008),

relied heavily on Montilla’s language, we are unpersuaded that

Picca restored Montilla’s framework. The Picca court applied

Montilla’s approach only after determining that the right at issue

concerned “fundamental notions of fair play underlying the

concept of due process,” and noting Waldron’s conclusion that

an alien’s right to counsel “derive[s] from the Sixth Amendment

right to counsel in criminal cases and the Fifth Amendment right

to due process in civil cases.” Id. at 78 (quoting Montilla, 926

F.2d at 167, and Waldron, 17 F.3d at 517).

For the sake of emphasis we repeat: we hold that when an

agency promulgates a regulation protecting fundamental

statutory or constitutional rights of parties appearing before it,

the agency must comply with that regulation. Failure to comply

19

will merit invalidation of the challenged agency action without

regard to whether the alleged violation has substantially

prejudiced the complaining party.

C.

We turn now to the question whether regulation 8 C.F.R.

§ 1240.10(a)(2)-(3), which was indisputably violated in this

case, protects a fundamental statutory or constitutional right,

such that we may order a new removal proceeding without a

showing of prejudice. We hold that it does.

Regulation 8 C.F.R. § 1240.10(a)(2)-(3) requires that

“[i]n a removal proceeding, the immigration judge shall”

“[a]dvise the respondent of the availability of free legal services

provided by organizations and attorneys . . . located in the

district where the removal hearing is being held[,]” and

“[a]scertain that the respondent has received a list of such

programs[.]” 8 C.F.R. § 1240.10(a)(2)-(3). This regulation

derives from 8 U.S.C. § 1362, which provides that “[i]n any

removal proceedings before an immigration judge . . . June 21,

2010, the person concerned shall have the privilege of being

represented (at no expense to the Government) by such counsel

. . . as he shall choose.” It is also mandated by 8 U.S.C. §

1229a(b)(4)(A), which commands the Attorney General to adopt

regulations ensuring that an alien “shall have the privilege of

being represented, at no expense to the Government, by counsel

of the alien’s choosing who is authorized to practice in such

20

proceedings.” It is plain that 8 C.F.R. § 1240.10(a)(2)-(3)

protects an alien’s right to counsel at removal hearings, which

is manifestly a statutory right.

This statutory and regulatory right to counsel is also

derivative of the due process right to a fundamentally fair

hearing. See Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir.

2005); Iavorski v. INS, 232 F.3d 124, 128 (2d Cir. 2000) (noting

that the “statutory right [of aliens] to be represented by counsel

at their own expense” is “an integral part of the procedural due

process to which the alien is entitled” (quotation and citation

omitted)); see also Waldron, 17 F.3d at 517. Aliens in removal

proceedings are entitled to Fifth Amendment Due Process

protection, which guarantees them a fundamentally fair removal

hearing. See Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d

Cir. 2001); see also Dakane v. Att’y Gen., 399 F.3d 1269, 1273

(11th Cir. 2005); Rosales v. Bureau of Immigration & Customs

Enforcement, 426 F.3d 733, 736 (5th Cir. 2005). A proceeding

may be fundamentally unfair if an alien is prevented from

reasonably presenting his case, Bernal-Vallejo v. INS, 195 F.3d

56, 63 (1st Cir. 1999), and we have held that the right to counsel

is “so fundamental to the proceeding’s fairness that a denial of

that right could rise to the level of fundamental unfairness.”

United States v. Charleswell, 456 F.3d 347, 360 (3d Cir. 2006).

Therefore, although the Fifth Amendment does not mandate

government-appointed counsel for aliens at removal

proceedings, it indisputably affords an alien the right to counsel

of his or her own choice at his or her own expense. Borges, 402

21

F.3d at 408; see also, e.g., Brown v. Ashcroft, 360 F.3d 346, 352

n.5 (2d Cir. 2004); Baltazar-Alcazar v. INS, 386 F.3d 940, 944

(9th Cir. 2004). Like the Court of Appeals for the Ninth Circuit,

we “warn[] the [government] not to treat [that right] casually.”

Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir.

1990) (quotation and citation omitted).

The right to counsel is a particularly important procedural

safeguard because of the grave consequences of removal. In this

case, where removal is predicated on the commission of an

aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), the

draconian and unsparing result of removal is near-total

preclusion from readmission to the United States, with only a

remote possibility of return after twenty years. Under 8 U.S.C.

§ 1182(a)(9)(A)(ii), an alien removed after conviction of an

aggravated felony is inadmissible “at any time[.]” 5 Removal

“visits a great hardship on the individual and deprives him of the

right to stay and live and work in this land of freedom. That

deportation is a penalty – at times a most serious one – cannot

be doubted.” Bridges v. Wixon, 326 U.S. 135, 154 (1945). As

Judge Rendell has cautioned, “[w]e must always take care to

remember that, unlike in everyday civil proceedings, the liberty

of an individual is at stake in deportation proceedings.” Ponce-

5

See also 8 U.S.C. § 1182(a)(9)(A)(iii); 8 C.F.R. §

212.2(a) (providing that Attorney General may consent to

readmission twenty years after aggravated-felony removal).

22

Leiva, 331 F.3d at 381 (Rendell, J., dissenting) (quotation

omitted).

Compounding the grave consequences of removal, many

aliens subject to removal proceedings are unfamiliar with the

complex adjudicatory process by which immigration laws are

enforced. Many courts have recognized that “our immigration

statutory framework is notoriously complex.” E.g., N-A-M v.

Holder, 587 F.3d 1052, 1058 (10th Cir. 2009); see also INS v.

Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 195

(1991) (referencing our “complex regime of immigration law”).

The complexity of removal proceedings renders the alien’s right

to counsel particularly vital to his ability to “reasonably

present[] his case.” Bernal-Vallejo, 195 F.3d at 63.

Regulation 8 C.F.R. § 1240.10(a)(2)-(3) was manifestly

designed to protect an alien’s fundamental statutory and

constitutional right to counsel at a removal hearing.6

6

Our conclusion accords with Picca v. Mukasey, 512 F.3d

75 (2d Cir. 2008), holding that the regulation specifically at

issue today should be enforced against the government without

regard to prejudice because it concerns the right to counsel,

which is both enshrined in statute and constitutionally derived.

Id. at 78-79; see also Castaneda-Delgado v. INS, 525 F.2d

1295, 1300 (7th Cir. 1975) (“[T]he right to be represented by

counsel of their choice granted to aliens in deportation

proceedings by statute and regulations is too important and

23

Recognizing the difficulty aliens might have in locating and

accessing counsel, the regulation reflects the agency view that

some aliens may only be able to obtain counsel through low-cost

or free legal services. We can think of no better demonstration

of that difficulty than Leslie’s unrepresented appearance at his

removal hearing and his statement that he could not afford

counsel. Here it was paramount that the IJ comply with §

1240.10(a)(2)-(3)’s mandate to “[a]dvise the respondent of the

availability of free legal services” and to “[a]scertain that the

respondent has received a list of such programs[.]” The IJ’s

failure to apprise Leslie of the availability of free legal services,

as required under the regulations, renders invalid the

subsequently entered removal order, without regard to Leslie’s

ability to demonstrate substantial prejudice.

IV.

Leslie contends additionally that he is entitled to a new

removal hearing because his Notice to Appear was deficient, in

violation of his due process rights and the applicable statute.

Pursuant to 8 U.S.C. § 1229(a)(1)(G)(i), an alien is entitled to

written notice of removal proceedings specifying, among other

things, “[t]he time and place at which the proceedings will be

held.” From the record presented, we can conclude that Leslie

was transported from Clinton County Prison to York County

fundamental a right to be circumscribed by a harmless error

rule.”).

24

Prison on April 15 or April 16 and was present for his April 16

hearing at York County Prison. He received, at most, one day of

notice as to the time and place of his removal hearing, and this

notice was perhaps effected only by physical transport from one

institution to another.

Because we grant Leslie’s petition on the basis of the IJ’s

violation of 8 C.F.R. § 1240.10(a)(2)-(3), we need not decide

whether this blatantly tardy notice was constitutionally deficient.

Parenthetically, we note that we find it difficult to believe that

a notice, issued under 8 U.S.C. § 1229(a)(1)(G)(i), would satisfy

the Due Process Clause without affording an alien adequate time

and opportunity to prepare arguments on his or her own behalf.

Because we grant the petition on other grounds, it is not

necessary to rule specifically in this case that subsumed in the

requirement of notice is a critical timeliness element. See

Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (aliens

facing removal are entitled to due process, which includes

opportunity to make arguments on their own behalf).

V.

Because the regulation at issue, requiring the IJ to inform

Petitioner of the availability of free legal services, protects the

fundamental right to counsel at removal hearings, we will

enforce it without regard to the existence vel non of prejudice

resulting from its violation. It is imperative that the IJ comply

scrupulously with these regulations, promulgated to ensure the

25

fundamental fairness of the process by which aliens are

removed. As it is undisputed that the IJ entered Leslie’s removal

order after failing to comply with the requirements of 8 C.F.R.

§ 1240.10(a)(2)-(3), we will grant the petition for review, vacate

the order of the Board, and remand for further proceedings in

accordance with the foregoing.7

7

We recognize the contribution of pro bono services

rendered by appointed counsel for the Petitioner, and note our

formal appreciation for counsels’ advocacy.

26